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2005-138317 ~ 85th Avenue Washington County,Oregon 2005_138317 1' 2005 09:38:34 AM O- Crttal Stna13 I CASTILLO $20.00$6.00$11.00-Total a$37.00 After recording, return to: 1 '111111111111 City of Tigard — Records Division 1 11 13125 SW Hall Blvd. 00860815200501383170040041 I,Jerry Hanson,Director of Assessment and Taxation Tigard, OR 97223 and Ex-ORlelo County Clerk for Washington County, F Oregon,do hereby certify that the within Instrument of writing was received and recorded In the book of 88 records of said county. ° N Jerry R.Hanson,Dlrector ssesamsnt and Taxation, , Ex-Officlo County Clerk RESTRICTIVE COVENANT (FUTURE STREET IMPROVEMENTS) THIS AGREEMENT is entered into this 31st day of August, 2005, by the City of Tigard, a Municipal Corporation of Washington County, Oregon, ("CITY"), and Tigard-Tualatin School District, 6960 SW Sandburg Street, Tigard, Oregon 97223, ("OWNER"). RECITALS WHEREAS OWNER is the Owner of record of Property covered by this Agreement as shown in Section 1 below, and WHEREAS OWNER has received approval of a development on the Property from the CITY, as set forth in CUP2004-00001, dated 8-4-04, and WHEREAS Chapter 18.810 of the TMC (Tigard Municipal Code) contains certain conditions applicable to street improvements, and issuance of permits is conditioned on OWNER'S compliance with the TMC, and WHEREAS OWNER wishes to mitigate the impacts of the proposed development, and WHEREAS parties wish to fulfill the requirements of Chapter 18.810. IN CONSIDERATION of the mutual promises, covenants and undertakings, and the issuance of a building permit in advance of OWNER constructing improvements required by the TMC, the parties agree as follows: Section 1: The real property subject to this Agreement is described as follows: Parcel, recorded as Document No. Book 1010, Page 517, Washington County, Oregon. OWNER agrees that the terms of this Agreement shall bind the OWNER as well as its heirs, successors in interest or assigns. Section 2: The improvements covered by this Agreement are as follows: 85th Avenue Half-street improvements to City of Tigard standards for an Arterial to include, but not limited to, pavement from centerline, curb, planter strip, sidewalk, street trees and public storm sewer. Restrictive Covenant(Future Street Improvements) Page 1 of 4 Revision date: 1/1/01 t, 2©©5-138317 Section 3: This Agreement shall be in full force and effect from the date of its execution until the improvements referred to in Section 2 are constructed in accordance with CITY standards in effect at the time of construction. Section 4: CITY agrees that the improvements listed in Section 2 will only be required as a result of any one of the following events: (1) when the improvements are part of a larger project to be financed or paid for by the formation of a Local Improvement District, (2) when the improvements are part of a larger public project to be financed or paid for in whole or in part by CITY or other public agency, (3) when the improvements are part of a larger project to be constructed by a third party and involves the sharing of design and/or construction expenses by the third party owner(s) of property in addition to the property described in Section 1, or (4) when construction of the improvements are deemed to be appropriate by the City Engineer in conjunction with construction of improvements by others adjacent to the improvements described in Section 2. In addition to this Agreement, OWNER'S obligation to share design and/or construction expenses may arise by application of the Reimbursement District Ordinance; Chapter 13.09, TMC, or any similar ordinance or law providing a process whereby such expenses are distributed among benefited properties. Section 5: OWNER agrees to sign any and all waivers, petitions, consents and all other documents necessary to obtain the above listed applicable improvements under any improvement act or proceeding of the State of Oregon, Washington County, or the CITY as may be proposed or adopted and to waive all right to remonstrate against the improvements listed in Section 2 above, submitted either alone or in conjunction with other improvements described in Section 4, as may be proposed. OWNER agrees that in lieu of any other document, CITY may treat this Agreement as a waiver of remonstrance on behalf of the property described in Section 1 against formation of such a Local Improvement District. OWNER covenants and agrees that the improvements described in Section 2 will specially benefit OWNER'S property as described in Section 1. Section 6: If CITY decides to form a Local Improvement District as a mechanism for the installation of improvements listed in Section 2, then OWNER shall retain the right to protest only the amount or the manner of spreading the assessment, but not the formation of such district. Section 7: CITY acknowledges that OWNER'S execution and performance of the terms of this Agreement constitutes compliance with the requirements of TMC Chapter 18.810. Section 8: OWNER agrees that if CITY causes the improvements listed in Section 2 to be constructed, or part of such improvements without regard to the source of funds for such project, but not as part of a Local Improvement District, then CITY will charge to OWNER and OWNER will promptly pay OWNER'S share of the cost of such improvements. OWNER'S share will be determined by CITY in a manner similar to spreading the cost of a public improvement to specially benefited properties. The parties intend OWNER to share in the cost of improvements even though actual construction is undertaken and performed by some third party, so long as the improvements, listed in Section 2, are included within the project. Restrictive Covenant(Future Street Improvements) Page 2 of 4 Revision date: 111101 II I I I II I I I II I I III II II I III III 2005-138317 (1) Except as otherwise provided in subsection (2) of this section, prior to construction of such improvements under this section, OWNER shall be provided not less than six (6) months written notice by first class mail that the project will be built. The notice shall advise OWNER that OWNER will share in the cost of such improvements and provide OWNER with an estimate of the total project cost as well as an estimate of OWNER'S share of the costs. Failure to provide this "six month" notice in advance of construction shall not nullify OWNER'S obligation to pay, but shall only extend the payment due date by the amount of time less than six months that notice was given, but not more than six months. Upon completion of improvements pursuant to this Section, CITY shall provide written notice to OWNER of OWNER'S share of the actual cost of the improvements and OWNER shall pay OWNER'S share within sixty (60) days. If OWNER's share of the cost of the improvements is $10,000 or more, the owner may elect to pay the City in 10 equal annual installments, with the first installment due within 60 days of the notice. The installment option shall be available only if the OWNER provides written notice and the first payment within 60 days of the notice. If the installment option is chosen, the unpaid amounts shall bear interest at the then legal rate of interest. Interest on overdue payments shall bear interest at the rate of one and one-half(1 Y%) per month from the date the payment is due until paid. (2) Where the improvements listed in Section 2 are constructed by a third party, who seeks reimbursement in accordance with the Reimbursement District Ordinance, Chapter 13.09, TMC, or a similar ordinance, then the terms and procedures of the ordinances shall apply in lieu of the provisions in subsection (1) of this section. Section 9: At any time prior to the events listed in Section 4, OWNER or OWNER's successors may pay to the CITY an amount determined by the CITY to be OWNER's share of the anticipated cost of the future improvements. Payment under this section shall discharge all of OWNER's obligations under this Agreement. City shall use the funds received under this section solely to pay for the costs of the improvements. Section 10: CITY and OWNER intend that all terms of this Agreement shall be covenants, conditions, and restrictions running with the title to the property covered by this Agreement, and shall be binding upon parties to this Agreement, their heirs, executors, assigns, administrators, and successors and shall be construed to be a benefit and a burden upon the property described in Section 1. The parties agree the CITY may, for purposes of recovering the cost of improvements described in Section 2, levy an assessment against the property, described in Section 1, and may enforce payment of such assessment in the manner provided in ORS Chapter 223 or the general laws of the State of Oregon. Section 11: Promptly after its execution by the parties, this Agreement shall be recorded in the records of Washington County to provide public notice and especially notice to future owners of property, described in Section 1 of the conditions, covenants and restrictions against the title to the property imposed by this Agreement. Section 12: CITY may enforce the terms of this Agreement in any court of competent jurisdiction. In addition to any other legal remedies, OWNER'S failure or refusal to comply with this Agreement shall constitute a violation of the TMC and the rights, remedies, and penalties provided in the TMC may also be enforced. Restrictive Covenant(Future Street Improvements) Page 3 of 4 Revision date: 1/1/01 - -: -- - --- - - - -- --- - � � II�II�IIIIIIIIIIIIIIIIIIIIII 2005-138317 Section 13: If suit or action is instituted to enforce a right guaranteed in this agreement, the prevailing party shall be entitled to, in addition to the statutory costs and disbursements, a reasonable attorney's fee to be fixed by the trial and appellate courts respectively. Section 14: The parties agree that if any term of provision of this agreement is,declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, so long as this agreement continues to reflect the intent of the parties. The parties shall negotiate an equitable adjustment of this agreement so that the purposes of this agreement are effected. OWNER(S)' Stgnat n tun Sign Nam (Print or Type) Name (Print or Type) Title (Print or Type) Title (Print or Type) Acknowledgment of OWNER'S signature(s) must be notarized. Where the OWNER is a corporation, it has caused its name to be signed by resolution or official approval of its board of directors. STATE OF OREGON ) County of W, ��� On this day 20,05 , before me a Notary Public, AllZ personally appeared and acknowledged that the foreg ing instrument to be their voluntary act and deed. Before me- OFFICIAL S� tary Public for Oregon CYNTHIA I HALL �^ ._.,. NOTARY PUBLIC—OREGON COMMISSION NO.347037 My commission expires: ! MY COMMISSION DFIRES SEPTEMBER 18,I;,'5i NA Accepted on behalf of the City of Tigard this Z day of S�P�'"`i0'� 20_Q_J P. 9 City Engirleer NO CHANGE IN TAX STATEMENT dftuRestrictive Covenant(Future Street Improvements) Page 4 of 4 RedeleA date: 1/1101